DIVORCE
1st edition: April 1999

Divorce, except in case of complete annulment (subject to the Ecclesiastical Courts) were expensive. From 1668 to 1857 full divorce was only possible through an expensive Parliamentary Act. Numerous other marriage causes came within the auspices of the Ecclesiastical Courts and the indexes for these until the middle of the 19th Century are quite interesting.

In effect divorce was unnecessary for most couples as marriage partners had a high mortality. Many women died in childbirth and husbands died in a variety of other ways. This is not though the reason why many widows or widowers remarried rapidly after their partners death, it was simply that young children needed a replacement parent or the living needed maintaining. Property went out of families by widows remarriage and the lack of preparation of the first husband.

Many of the poorer men disappeared because they could not afford a divorce and just deserted. We find many deserted wives in the nineteenth century census's and Eighteenth Century poor records.

After the Sixteenth Century Reformation the process of divorcing a partner became incredibly complicated compared to the situation before. The Medieval rich could find many causes for divorce. Consanguinity, i.e.., blood or other relationship, was one used especially by the aristocracy. It can be used quite curiously. Louis VII of France divorced his wife Eleanor Duchess of Aquitaine after he had daughters by her (on the grounds that she was a distant cousin). She went home and promptly married Henry Count of Anjou who became soon after the King of England. Louis paid heavily for handing over half his kingdom to his rival (a rival related to her in exactly the same cousinship).

Divorce was a problem for the children as their parentage was brought into question. For example, Queen Katherine Parr's sister-in-law's children were all bastardised because of their mother's behaviour. Queen Katherine's step-son Lord Latimer ended up in the York High Commission Court in 1562 charged with fornication with 12 women!

In the early seventeenth Century Lady Frances Howard, by marriage Countess of Essex, managed to get a nullity from her husband the Earl of Essex on grounds which were regarded at the times as somewhat peculiar. She claimed that the Earl was impotent towards her, but not with other women, (see 'The Weaker Vessel'). It was a political divorce. She had quite high support as she wished to remarry with Robert Carr, Earl of Somerset, a favourite of King James I. The necessary annulment went through, enabling the remarriage. Sadly it did not end there. Sir Thomas Overbury had tried to advise Carr not to marry Frances, but Carr was a desirable ally for the Howards. The family managed to get Overbury imprisoned where Frances managed to have him poisoned through an agent. After her divorce she married Carr and had an only daughter. The anti-Howard faction managed to get the Somersets convicted of murder, though the Somersets were spared execution they suffered life long disgrace.

Elsewhere in the 16th and 17th Century disgruntled husbands did do other things to separate from their wives and form relationships with other women. Sir Robert Dudley who claimed his father's Earldom of Leicester left his wife Alice and ran off to Italy with his cousin Elizabeth Southwell. He was created Duke of Northumberland by the Emperor and fathered a large second family.

Robert Dudley was the son and main heir of Robert Dudley Earl of Leicester. The father had probably had something to do with the disposing of his first wife Amy Robsart, and then denied his second marriage to his surviving son's mother. Robert went ahead and married the widowed Countess of Essex, cousin of the Queen probably for political and dynastic reasons.

The James, Duke of Monmouth 1649-1685, an illegitimate son of Charles I, separated from his wife Lady Ann Scott on the grounds that they had been too young when they married. He then formed a relationship with the young Henrietta Wentworth, Baroness Wentworth in her own right, and lived with her. She died not long after his execution of grief. The Duchess remarried and her children inherited her lands and titles.

For a short period during the Commonwealth 1653-1660, the Commonwealth Marriage Act saw marriage as a civil settlement so that in divorce the innocent party was allowed to marry again, unlike the Church of England law.

In the Eighteenth century a Judicial separation occurred after the husband or wife appeared in the Ecclesiastical Court ruled on by Canon Law. Proof of adultery would be needed, though a wife could not divorce her husband on grounds of adultery. At this point the husband could then sue the wife's lover. This could cost the 'guilty party' thousands. The couple then had the grounds for a judicial separation or divorce and, from late in the Seventeenth Century the parliamentary case. It was only through a Parliamentary Act could the divorcees remarry.

There were only 100 parliamentary divorces in the 18th Century and some of the divorcees remarried immediately, though most suffered much social stigma. Lady Diana Spencer-Churchill, the daughter of the Fourth Duke of Marlborough, was divorced by Lord Bollingbroke and married Topham Beauclerk, a member of the family of the Dukes of St Albans.

The 18th Century divorce cases were something to comment on. Lady Sarah Lennox 1745-1826 and her first husband Sir Charles Bunbury 1740-1821 was one of the most notorious. She was sued for divorce because of her adultery with William Gordon. During the trial, interestingly, the Bunbury servants were called on to give evidence against their former mistress.

'Lady Sarah Bunbury, being of a loose and abandoned disposition and being wholly unmindful of her conjugal vow etc., did carry on a lewd and adulterous conversation with Lord William Gordon'.

Bunbury still sued despite the fact that he knew Gordon was not wealthy, despite being a member, like Sarah of a Ducal family. Lady Sarah's marriage contract was nullified and any future issue was unable to claim on Bunbury's estate, though her daughter, legally Bunbury's, was actually Gordon's child and Sarah had split from Gordon in 1769, the Divorce Act went through only in 1776. This was the year that Lady Sarah met the aristocratic George Napier 1751-1804, by whom she had a large and respectable family who founded a dynasty of great soldiers.

The case produced difficult relationships in Lady Sarah's family. Her sister Lady Emily Lennox 1731-1814 was no better than her sister, for whilst still married to James Duke of Leinster 1722-1773 she had a child by William Ogilvie 1740-1832 who she later married. William Gordon's sister-in-law, Jane Duchess of Gordon 1748-1812 saw three of her daughters marry Dukes and one a Marquess, yet she was regarded as being particularly immoral. A good example of this is the story that when pressed by a suitor for one of her daughters over the close kinship in the family she was pleased to inform him that there was no Gordon blood in that daughter. The Lennox and Gordons were not alone in the Eighteenth Century Aristocracy for their behaviour, the Spencers and the Cavendishes were just as idiosyncratic.

Not all divorce acts in Parliament went the way of the couples requirements. Sir George Downing failed in 1715 to get his marriage dissolved on the grounds of non-consummation and the youth of the parties at marriage (15 years). It failed because both parties were over the legal age of consent, he over 14 and she over 12, when they married.

In 1857 the Matrimonial Causes Act went through which made it possible to obtain a divorce in England, other than by Act of Parliament. Before this a few hundred cases had gone through. Only six of these had been by suit of the wife who was legally disadvantaged, even if her husband committed adultery. This situation continued until women had a right to their property. In fact many people separated informally and in some cases married bigamously. This might explain a situation which I have encountered where husbands and wives sometimes did not live under the same roof during the Census recording in the Nineteenth Century, and were living with other people.

It is well known that in the period which covered the 18th to the 20th Century it was possible, though illegal for an unwanted wife to be sold at the local market place. She could be even advertised in the newspaper. The Thomas Hardy novel, The Mayor of Casterbridge, includes an example of this.

In 1923 Women were allowed a divorce on grounds of adultery alone and the husband was only allowed access to the children if he was a desirable influence. The 1937 Divorce Act allowed that Desertion and insanity could be grounds for divorce.

There have been many changes since and new developments can be expected in the future.

The Records.

From 1669 Divorce Bill copies are in the House of Lords Record Office.

1858-1937 Divorce records are in the Public Record Office, Kew, under the reference J77.

1858-1958 Index to Matrimonial causes are in the Public Record Office, Kew, under reference J78.

Files have either a 75 year or 30 year rule for closure. The 1938 to present records can be searched for a fee. Divorce records have recently moved from Somerset House to First Avenue House, High Holborn, London, WC1V 6NP. I understand that the information is very basic and may not fulfil personal requirements, though will fulfil those of the family historian.

Newspapers are very good for more modern divorces, but only mention brief details.

Further reading (other than in my reading list )
Chapman, Colin R. (and Pauline M Litton) Marriage Laws, Rites, Records and customs. Lochin publishing, 1996.
Fraser, Antonia. The Weaker Vessel, Mandarin 1994.
Stone, Lawrence. The Family Sex and Marriage in England 1500-1800, Penguin, 1990.
Tillyard, Stella, Aristocrats, Vintage, 1995.

 

This page is compiled by Timothy J. Owston of York, England.
Please contact me with any comments or information.
You can Email me at:
owston.tj@virgin.net
My home page is at: Home Page